EQUALITY OFFICER'S DECISION NO: DEC-E/2009/121
PARTIES
URBONAVICIUS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
COALPORT BUILDING COMPANY LTD
File No: EE/2006/497
Date of issue 31 December, 2009
Headnotes: Employment Equality Acts, 1998&2007 sections 6,8, 14A and 77 - discriminatory treatment - discriminatory dismissal- race -prima facie case
1. DISPUTE
This dispute involves a claim by Mr. Vygandas Urbonavicius, who is a Lithuanian national, that he was (i) discriminated against by the respondent in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, (ii) harassed by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts and (iii) dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts
2. BACKGROUND
2.1 The complainant was employed by the respondent as a General Operative between January, 2005 and October, 2006. He contends that during his period of employment he was (i) treated less favourably as regards his conditions of employment and (ii) harassed by the respondent on the basis of his Lithuanian nationality contrary to the Employment Equality Acts, 1998 and 2004. He also contends that he was dismissed by the respondent in circumstances amounting to discrimination on grounds of race (Lithuanian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 8 December, 2006. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 23 March, 2009, the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 19 November, 2009.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Lithuanian national, commenced employment as a General Operative with the respondent on 11 January, 2005. He states that the vast majority of his employment was spent on a site in North County Dublin. The complainant states that he did not receive any written contract or terms of employment and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts. He contends that following the Decision of this Tribunal in 58 Complainants v Goode Concrete there is an obligation on an employer to provide employees with a contract of employment in a language which they understand. In the course of the Hearing the complainant stated that there were approximately ten other General Operatives employed on the site - Irish, Polish, Rumanian and Lithuanian - but was unable to confirm whether or not the respondent had provided any of these employees with a contract of employment or other documentation.
3.2 The complainant states that the respondent failed to provide him with a health and safety statement or other health and safety training in a language which he could understand and submits that this failure constitutes less favourable treatment of him on grounds of race, contrary to the Acts. He seeks to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete in this regard. The complainant adds that he received health and safety talks over the period of his employment but these were delivered in either English or Polish. The documentation was provided in these languages only.
3.3 The complainant contends that the Registered Employment Agreement (REA) for the Construction Industry requires the respondent to join him in the Construction Workers' Pension and Sick Pay Scheme and to facilitate his membership of an appropriate trade union. He states that he was never joined in such a scheme and rejects the respondent's assertion that it brought this entitlement to his attention and he refused to join because of the financial implications for him. The complainant also rejects similar assertions by the respondent as regards union membership. It is submitted on behalf of the complainant that the respondent's behaviour in relation to these issues constitutes unlawful discrimination of him. In the course of the Hearing the complainant was unable to say whether or not any of the other employees, including the Irish employees, who were engaged at the same time as him, were joined in the Scheme or were members of a trade union.
3.4 The complainant states that he was sweeping out a car park in the one of the new buildings on the site when he was approached by two men whom he believed to be the Project Manager and the owner of the company. The complainant states that the owner approached him and told him to "f*** off". The complainant states that he took this comment to mean he was fired. He rejected the respondent's assertion that he was smoking in the car park at the time, although he accepted that he had smoked there earlier that day. The complainant states that all employees smoked on site, that he was unaware he could not do so and that he was not aware at the time that a gas installation on the site was being tested that day. He states that he spoke with his Supervisor about the incident, that his Supervisor confirmed he was fired and that he (the complainant) left the site immediately. It is submitted on his behalf that this constitutes discriminatory dismissal of the complainant on grounds of race.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent accepts that the complainant was not given a written contract of employment or written terms and conditions during his period of employment. It states that the contract with the complainant was a verbal one and any terms would have been set out to the complainant by the Site Manager/Foreman on recruitment, using the services of another employee to translate and this was the process it operated at that time for all General Operatives. The respondent states that the complainant was given the relevant points of health and safety issues during the Site Safety Induction on 15 January, 2005 and subsequent Toolbox Meetings, using the services of another employee to translate. It adds that health and safety documentation was displayed in canteen areas in English and Polish - this material was available at all times. The respondent states that it brought the existence of the union and the sick pay scheme to the attention of the respondent and he declined join either. It therefore rejects that it discriminated against the complainant on the basis of his nationality contrary to the Acts.
4.2 The respondent agrees with the complainant's version of events in the car park on the day of the dismissal. It adds that a gas installation in the building was being tested that day and the complainant was caught smoking in the area. It states that the complainant's actions created a very dangerous situation and accepts the owner acted in the manner outlined by the complainant. In the course of the Hearing the respondent confirmed that the complainant had been dismissed on the day but rejected the assertion that it was connected in any way with his nationality.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts as regards his conditions of employment, (ii) harassed the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts and (iii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the complainant at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....."
Section 6(2) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "
It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Lithuanian.
5.3 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.4 The first issue raised by the complainant relates to the respondent's failure to furnish him with a written contract of employment. In the first instance it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal. The complainant stated that there were around ten other General Operatives employed at the same time as him - Irish, Romanian, Polish and Lithuanian - but he was unable to say if any of those employees received written contracts of employment or other documentation.
5.5 In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
5.6 In the instant I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination in respect of the failure of the respondent to provide him with a written contract of employment could be inferred. I have reached a similar conclusion as regards the failure of the respondent to join the complainant in the Construction Workers' Pension and Sick Pay Scheme or to facilitate his membership of the appropriate trade union as required by the appropriate Registered Employment Agreement. In this latter regard I feel it is worth mentioning that I believe the more likely scenario is that the respondent did not draw the attention of any of its employees to the existence of the Scheme. Enforcement of any alleged breach of the Registered Employment Agreement is a matter for the Labour Court in accordance with the Industrial Relations Act 1946 (as amended) and not for this Tribunal.
5.7 The next element of the complainant's claim concerns the alleged failure of the respondent to provide the complainant with the appropriate health and safety training and documentation in a language he could understand. The respondent produced evidence which clearly demonstrated that it did provide health and safety training and that the complainant attended these workshops. It is also clear that both these workshops and some of the health and safety documentation were provided in both English and Polish. I am satisfied that the complainant is not competent in either of these languages and it follows therefore that he has established a prima facie case of discrimination on grounds of race in respect of this element of his complaint. The respondent adduced no evidence to rebut this inference and consequently the complainant is entitled to succeed on this issue.
5.8 The respondent accepted in the course of the Hearing that the complainant had been dismissed and that the owner had used foul language at him, stating he had been caught smoking in an underground car park on a day when the gas installation was being tested. In the interests of completeness I want to state that I find the respondent's version of events -that the complainant was smoking at the time - to be more compelling. It is apparent that there were certain procedural defects in the dismissal process, which clearly were not in compliance with the Code of Practice on Grievance and Disciplinary Procedures but the claim before this Tribunal is that the complainant was dismissed on the ground of race. The complainant has not adduced any evidence to substantiate his claim that he was dismissed because of his nationality. As the Labour Court recently commented it has dealt with many cases "where employers are accused of dismissing workers without resorting to the appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside Ireland." . I find therefore the complainant has failed to establish facts from which it could be inferred that the termination of his employment was influenced in any way by his nationality. Finally, the complainant adduced no evidence in respect of his allegation that he was harassed on grounds of race contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts in respect of those aspects of his conditions of employment concerned with a written contract, trade union membership and the Construction Workers' Pensions and Sick Pay Scheme,
(ii) that the complainant has failed to establish a prima facie case of harassment on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts,
(iii) that the complainant has failed to establish a prima facie case that he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts,
(iv) the respondent discriminated against the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary section 8 of those Acts in respect of the provision of health and safety training and documentation.
6.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2008 I order that the respondent pay the complainant the sum of €500 by way of compensation for the distress suffered by him as a result of this discrimination. This award does not include any element of remuneration and is not therefore subject to the PAYE/PRSI code.
_______________________________________
Vivian Jackson
Equality Officer
31 December, 2009